Understanding Society

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TILT seminar by Maja Brkan

Do Algorithms Rule the World? Algorithmic Decision-Making and the Right to Explanation in the GDPR.

Bio

Maja Brkan is Assistant Professor of European Union
Law at Maastricht University since 2013 where she is responsible for
coordinating the core course on EU institutions and for supervising students
researching on data privacy aspects of Big Data and Artificial
Intelligence. She is Associate Director of the Maastricht Centre for
European Law, a member of the European Centre on Privacy and Cybersecurity (ECPC),
holds a position of Associate Editor of the European Data Protection
Law Review and regularly presents her work at international conferences
in Europe and in the US. She has published widely on privacy and
data protection in peer-reviewed journals. She is the author of an
award-winning PhD thesis in EU law and holds a prestigious Diploma of
the Academy of European Law from the European University Institute.
Before moving to Maastricht, she worked as a legal advisor
(référéndaire) at the Court of Justice of the EU (2007-2013). Under her supervision, students achieved first and second place at the widely recognized European Law Moot Court Competition.

Abstract

The
purpose of this paper is to analyze the rules of the General Data
Protection Regulation and of the and the Directive on Data Protection in
Criminal Matters on automated decision making in the age of Big
Data and to explore how to ensure transparency of such decisions, in
particular those taken with the help of algorithms. Both legal acts
impose limitations on automated individual decision-making,
including profiling. While these limitations of automated decisions
might come across as a forceful fortress strongly protecting individuals
and potentially even hampering the future development of AI in
decision making, the relevant provisions nevertheless contain numerous
exceptions allowing for such decisions. Moreover, in case of automated
decisions involving personal data of the data subject, the GDPR
obliges the controller to provide the data subject with ‘meaningful
information about the logic involved’ (Articles 13(2)(f) and 14(2)(g)),
thus raising the much-debated question whether the data subject
should be granted a right to explanation of the automated decision.
While such a right would in principle fit well within the broader
framework of GDPR’s quest for a high level of transparency, it also
raises several queries: What exactly needs to be revealed to the data
subject? How can an algorithm-based decision be explained? Apart from technical
obstacles, we are facing also intellectual property obstacles and
implementation obstacles to this ‘algorithmic transparency’. The paper
seeks to find ways how to reconcile the potential recognition of the right to explanation with the transparency requirement.